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DEFENDANT-INTERVENORS MOTION TO AMEND JANUARY 8 DISCOVERY ORDER

CASE NO. 09-CV-2292 VRW

COOPER AND KIRK, PLLCCharles J. Cooper (DC Bar No. 248070)*[email protected] H. Thompson (DC Bar No. 450503)*[email protected] C. Nielson, Jr. (DC Bar No. 473018)*[email protected]

Nicole J. Moss (DC Bar No. 472424)*[email protected] A. Patterson (Ohio Bar No. 0080840)*[email protected] New Hampshire Ave. N.W., Washington, D.C. 20036Telephone: (202) 220-9600, Facsimile: (202) 220-9601

LAW OFFICES OF ANDREW P. PUGNOAndrew P. Pugno (CA Bar No. 206587)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 608-3065, Facsimile: (916) 608-3066

ALLIANCE DEFENSE FUNDBrian W. Raum(NY Bar No.2856102)*[email protected] A. Campbell (OH Bar No. 0081501)*[email protected] North 90th Street, Scottsdale, Arizona 85260Telephone: (480) 444-0020, Facsimile: (480) 444-0028

ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,GAIL J.KNIGHT,MARTIN F.GUTIERREZ,MARK A.JANSSON,and PROTECTMARRIAGE.COM YES ON 8,A

PROJECT OF CALIFORNIA RENEWAL

*Admittedpro hac vice

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.

ZARRILLO,

Plaintiffs,

v.

ARNOLD SCHWARZENEGGER, in his official

capacity as Governor of California; EDMUNDG. BROWN, JR., in his official capacity as

Attorney General of California; MARK B.

HORTON, in his official capacity as Director ofthe California Department of Public Health and


DEFENDANT-INTERVENORSDENNIS HOLLINGSWORTH, GAILKNIGHT, MARTIN GUTIERREZ,

MARK JANSSON, ANDPROTECTMARRIAGE.COMSMOTION TO AMEND JANUARY 8,2010 DISCOVERY ORDER

Judge: Chief Judge Vaughn R. WalkerMagistrate Judge Joseph C. Spero

Location: Courtroom 6, 17th FloorTrial Date: Jan. 11, 2010

Case3:09-cv-02292-VRW Document474 Filed01/18/10 Page1 of 8
http://dockets.justia.com/http://docs.justia.com/cases/federal/district-courts/california/candce/3:2009cv02292/215270/474/http://dockets.justia.com/docket/court-candce/case_no-3:2009cv02292/case_id-215270/

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DEFENDANT-INTERVENORS MOTION TO AMEND JANUARY 8 DISCOVERY ORDER


State Registrar of Vital Statistics; LINETTESCOTT, in her official capacity as Deputy

Director of Health Information & Strategic

Planning for the California Department of PublicHealth; PATRICK OCONNELL, in his official

capacity as Clerk-Recorder for the County of

Alameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for

the County of Los Angeles,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIARENEWAL,

Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)

[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)*[email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001Telephone: (202) 393-8690, Facsimile: (202) 347-3622



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1DEFENDANT-INTERVENORS MOTION TO AMEND JANUARY 8 DISCOVERY ORDER


TOTHEPARTIESANDTHEIRATTORNEYSOFRECORD:

PLEASE TAKE NOTICE that as soon as practicable given the Courts trial schedule, before the

Honorable Joseph C. Spero, United States District Court, Northern District of California, 450 Golden

Gate Avenue, San Francisco, California, Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight,

Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (Proponents) will move the Court to

amend the January 8, 2010 Order (Doc # 372) in order to add four individuals to the core group

defined in that Order.1

The issue to be decided is: Is there good cause to modify the January 8, 2010 Order to add to the

core group four additional persons?

BACKGROUND

In its order of January 8, 2010 (January 8 Order), the Court defined a list of persons who

qualified as the core group of persons engaged in the formulation of campaign strategy and

messages and, thus, whose communications are privileged from compelled disclosure under the First

Amendment. Doc # 372 at 2 (quoting Perry v. Hollingsworth, No. 09-17241 slip op. at 36 n.12 (9th

Cir. Jan. 4, 2010) (emphasis omitted). That core group list was taken (after some narrowing) from

the persons listed in the November 5, 2009 Declaration of Ronald Prentice (November 5

Declaration) (submitted in camera and under seal) and the January 7, 2010 Declaration of Ronald

1 Pursuant to N.D. Cal. L.R. 7-2(a), this motion must be noticed for hearing on the motioncalendar of the assigned Judge for hearing not less than 35 days after service of the motion.

Given that trial is already underway, Proponents respectfully request that the Court schedule thismotion for hearing as soon as the trial schedule will allow. Proponents will file an administrativemotion to shorten time requesting such relief.

Because the Courts electronic filing system was not functioning from 5 p.m. on January15, 2010, to 12:00 p.m. on January 18, 2010, and because no drop box at the courthouse wasavailable for manual filing during that period, Proponents could not file this motion on theCourts docket during that period. Proponents served the motion on all parties, however, on themorning of January 17 and informed the parties that they planned to file it with the Court as soonas a means of doing so became available. See Decl. of Jesse Panuccio, attached to Defendant-Intervenors Motion to Shorten Time.


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Prentice (January 7 Declaration) (Doc # 364).

The November 5 Declaration focused on individuals within the ProtectMarriage.com campaign

with positions of management responsibility. See Doc # 372 at 4. At a hearing on January 6, 2010,

Proponents acknowledged that the individuals in the [November 5 Declaration] form at least a part of

the core group but sought an additional 24 hours to determine whether additional individuals should

also be included, which the Court granted. Id. The January 7 Declaration listed additional names of

persons involved in internal formulation of messaging and strategy, many of which the Court found to

be part of the core group.

The January 7 Declaration, however, omitted the following individuals:

Richard Peterson. Mr. Peterson personally appeared on behalf of ProtectMarriage.com instatewide television advertisements of the campaign, and participated directly with other

members of the core group to formulate the specific campaign messages he delivered in

those television advertisements.

Robb Wirthlin. Mr. Wirthlin personally appeared on behalf of ProtectMarriage.com instatewide television advertisements of the campaign, and participated directly with other

members of the core group to formulate the specific campaign messages he delivered in

those television advertisements.

John Doe. Mr. Doe was a professional opinion research consultant who was hired byProtectMarriage.com to conduct focus groups and other voter opinion research, which

were essential parts of the internal formulation of the campaigns strategy and

messaging.2

Declaration of Ronald Prentice (January 16, 2010) (January 16 Declaration), 3. Copies of

2 John Doe is an alias to protect the individuals First Amendment right to participateanonymously in a political campaign. Mr. Does name is revealed in the concurrently fileddeclaration of Ronald Prentice, which Proponents have moved this Court to seal.


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representative examples of documents containing internal campaign communications by or among

these three individuals and other members of the core group are attached as exhibits to the January

16 Declaration.

The January 7 Declaration described the role of Marketing Communications Services Inc.

(MCSI) in the production and distribution of television advertisements for ProtectMarriage.com. See

January 7 Declaration, 7(vii).3

The January 7 Declaration stated that [a]lthough MCSI did not have

a key role in the substantive development of messaging strategy, in this capacity as a vendor, MCSI

was often provided with confidential draft scripts and messages that were never publicly distributed

beyond the core group of ProtectMarriage. January 7 Decl., 7(vii). The Courts January 8 Order did

not include MCSI in the core group. Doc # 372 at 4. As Mr. Prentices January 16 Declaration attests,

however, the head of MCSIBill Criswellattended campaign focus groups in which key messaging

and strategy issues were evaluated and he was a party to many key campaign communications

regarding messages to test in focus groups, the creation of ads to test in focus groups, and the analysis

and determination of which messages to use in public advertising. He thus regularly received the most

sensitive internal communications regarding campaign strategy and messaging (including draft scripts,

advertisements for testing in focus groups, and the results and analysis of focus groups and polling).

January 16 Declaration, 3(d), 6. Copies of representative emails attached to the January 16

Declaration demonstrate the involvement of Mr. Criswell in the innermost discussions of strategy and

messaging within the ProtectMarriage.com campaign.

The failure to include or adequately describe these four individuals in the January 7 Declaration

was an oversight caused by the extreme time constraints faced by legal counsel and Proponents in

preparing for this trial, the difficulty of remembering the precise scope of involvement of all persons

3 The January 7 Declaration contained Bill Criswells name in a parenthetical alongsideMCSI (Marketing Communications Services, Inc. (Bill Criswell)) and then described MCSIsrole in the campaign. January 7 Declaration, 7(vii).


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engaged in the formulation of strategy and messages in such a massive and complex citizens campaign

extending over months, and Mr. Prentices own personal work schedule. Id. at 3.

ARGUMENT

The sweeping scope of Plaintiffs discovery requests implicates fundamental First Amendment

rights. As this Court has summarized, the Ninth Circuit held that Proponents First Amendment

privilege protects private, internal campaign communications concerning the formulation of strategy

and messages. Doc # 372 at 2 (quoting Perry, No. 09-17241, slip op at 36 n.12) (emphasis omitted).

The privilege protects communications among the core group of persons engaged in the formulation

of campaign strategy and messages. Id. (emphasis omitted). The Ninth Circuit left the determination

of which persons logically should be included in the core group to this Court. Id.

The Court has wide discretion to reopen its January 8 Order to ensure that all who properly

belong in the core group are reflected in that Order. Little v. City of Seattle, 863 F.2d 681, 685 (9th

Cir.1988). Sound reasons exist for doing so. Each of the four persons listed above played an important

role in, and/or were privy to, the most sensitive internal deliberations of the ProtectMarriage.com

campaign regarding messages and strategy. Messrs. Peterson and Wirthlin were involved in

formulating campaign messages and advertising and sometimes were the very voices of the campaign

to the public. January 16 Declaration, 3, 4. Mr. Doe was involved in focus-group research, which

has become an indispensable component of modern campaign messaging and strategy. Id.

Mr. Criswell was also involved in focus-group research as well as the production and distribution

of television and radio advertisements. Id. at 3, 4, 6; January 7 Declaration, 7(vii). While Mr.

Criswell has submitted a declaration stating that MCSI did not participate in conceptualizing or

devising the advertising campaign, Doc # 351-1, the communications attached to Mr. Prentices

declaration bring into sharp focus the fact that Mr. Criswell, by virtue and necessity of his role as a


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critical campaign vendor of advertising, was systematically and routinely copied on many of the most

confidential and sensitive internal communications about content and strategy of the campaigns

messaging. In this regard, he was similar to the assistants of core group members who, while they

might not themselves have conceptualized or devised campaign messaging and strategy, were

nonetheless necessarily part and parcel of the formulation of this privileged speech by virtue of their

job. To exclude Mr. Criswell from the core group is to destroy the privilege where its application is

most fervently neededfor internal communications among the very heart of the campaign concerning

the formulation of messaging and strategy. See Perry, No. 09-17241, slip op. at 30.

Thus, the communications of these four individuals with or from other core-group members

concerning messaging or strategy lie at the very heart of the First Amendment privilege defined by the

Ninth Circuit and implemented by the Courts January 8 Order. The documents attached to the January

16 Declaration make this fact plain.

First Amendment rights are of paramount importance. The rights of these four individuals and

the campaign should not be denied merely because their names or the scope of their roles in the

campaign were omitted from the January 7 Declaration. The time pressures of this case are obvious

and severe. While preparing for a January 11 trial, Proponents had very little time from the Ninth

Circuits January 4 opinion to review the entire course of a long campaign and its many participants to

determine which individuals should be included in the core group. Innocent omissions were

inevitable and came to light as Proponents continued to review the history of the campaign and

documents associated with it.

Moreover, there is no prejudice to Plaintiffs in reopening the Order to add these additional names

to the core group. Production of Proponents documents pursuant to the January 8 Order has just been

completed, save for documents pertaining to the four individuals that are the subject of this motion.

While some documents bearing communications between these four additional individuals and other


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core group members may have already been produced, Plaintiffs had no right to privileged documents

in the first place and, given the short timeframe since production, cannot be said to have relied on them

to their detriment in preparing and trying their case. The balance of rights and equities favors

amending the order to add these four individuals to the core group. See Perry, No. 09-17241, slip op.

at 37.

CONCLUSION

For the foregoing reasons, Proponents respectfully request that the Court grant this motion to

amend the January 8 Order (Doc # 372) to add Richard Peterson, Robb Wirthlin, John Doe, and Bill

Criswell to the core group defined in that Order.

Dated: January 18, 2010

COOPERANDKIRK,PLLC

ATTORNEYS FOR DEFENDANTS-INTERVENORSDENNIS HOLLINGSWORTH,GAIL J.KNIGHT,MARTIN F.GUTIERREZ,MARK A.JANSSON, ANDPROTECTMARRIAGE.COM YES ON 8,APROJECT

OF CALIFORNIA RENEWAL

By: /s/ Charles J. CooperCharles J. Cooper


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DECLARATION OF RONALD PRENTICE


COOPER AND KIRK, PLLCCharles J. Cooper (DC Bar No. 248070)*[email protected] H. Thompson (DC Bar No. 450503)*[email protected] C. Nielson, Jr. (DC Bar No. 473018)*[email protected]

Nicole J. Moss (DC Bar No. 472424)*[email protected] A. Patterson (Ohio Bar No. 0080840)*[email protected] New Hampshire Ave. N.W., Washington, D.C. 20036Telephone: (202) 220-9600, Facsimile: (202) 220-9601

LAW OFFICES OF ANDREW P. PUGNOAndrew P. Pugno (CA Bar No. 206587)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 608-3065, Facsimile: (916) 608-3066

ALLIANCE DEFENSE FUNDBrian W. Raum(NY Bar No.2856102)*[email protected] A. Campbell (OH Bar No. 0081501)*[email protected] North 90th Street, Scottsdale, Arizona 85260Telephone: (480) 444-0020, Facsimile: (480) 444-0028

ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,GAIL J.KNIGHT,MARTIN F.GUTIERREZ,MARK A.JANSSON,and PROTECTMARRIAGE.COM YES ON 8,A

PROJECT OF CALIFORNIA RENEWAL


UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.

ZARRILLO,

Plaintiffs,

v.

ARNOLD SCHWARZENEGGER, in his official

capacity as Governor of California; EDMUNDG. BROWN, JR., in his official capacity as

Attorney General of California; MARK B.

HORTON, in his official capacity as Director ofthe California Department of Public Health and


DECLARATION OF RONALDPRENTICE

Judge: Chief Judge Vaughn R. WalkerMagistrate Judge Joseph C. Spero

Case3:09-cv-02292-JW Document474-1 Filed01/18/10 Page1 of 6

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DECLARATION OF RONALD PRENTICE


State Registrar of Vital Statistics; LINETTESCOTT, in her official capacity as Deputy

Director of Health Information & Strategic

Planning for the California Department of PublicHealth; PATRICK OCONNELL, in his official

capacity as Clerk-Recorder for the County of

Alameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for

the County of Los Angeles,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIARENEWAL,

Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)

[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)*[email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001Telephone: (202) 393-8690, Facsimile: (202) 347-3622



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1DECLARATION OF RONALD PRENTICE


I, Ronald Prentice, make the following declaration pursuant to 28 U.S.C. 1746:

1. I am a resident of California over 18 years of age, and my statements herein are basedon personal knowledge.

2. On January 7, 2010, I filed a declarationpursuant to the Courts order at the January6, 2010 hearingdescribing those persons who I believe should be included within the core

group of persons involved in the formulation of campaign strategy and messages for

ProtectMarriage.com. See Doc # 364.

3. Due to (i) the extreme time constraints in preparing for this trial between January 4 andJanuary 7, (ii) the difficulty of recalling all persons engaged in and involved with the internal

formulation of campaign strategy and messages in such a massive and complex campaign that

extended over several months in 2008, (iii) and my own personal work schedule, I omitted the

names and/or complete roles of the following individuals who I believe should also be included as

members of the core group of persons who were involved in the formulation of campaign strategy

and messages for purposes of the First Amendment privilege:

a. Richard Peterson, an individual who personally appeared on behalf ofProtectMarriage.com in statewide television advertisements of the campaign,

and participated directly with other members of the core group to formulate

the specific campaign messages he delivered in those television

advertisements.

b. Robb Wirthlin, an individual who personally appeared on behalf ofProtectMarriage.com in statewide television advertisements of the campaign,

and participated directly with other members of the core group to formulate

the specific campaign messages he delivered in those television

advertisements.


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c. REDACTED, a professional opinion research consultant who was hired byProtectMarriage.com to conduct focus groups and other voter opinion

research, which were essential parts of the internal formulation of the

campaigns strategy and messaging.

d. Bill Criswell, an advertising vendor and individual who attended and observedfocus groups and was routinely and necessarily included in email

communications among the core group of ProtectMarriage.com that

contained the most sensitive, internal discussions of campaign strategy and

messaging (including draft scripts, advertisements for testing in focus groups,

and the results and analysis of focus groups and polling).

4. Copies of representative examples of highly sensitive, internal communicationsregarding the formulation of campaign messaging and strategythat will have to be produced (or

have already been produced on an attorneys eyes only basis) solely because one or more of the four

individuals named above failed to be included within the core group by this Courts January 8

Orderare attached to this declaration as Exhibit A.

5. In my January 7, 2010 declaration, I had described the role of MarketingCommunications Services Inc. (MCSI) in the production and distribution of television

advertisements for ProtectMarriage.com. MCSI was not included within the core group by the

Courts January 8, 2010 order (Doc # 372). The President of MCSI is Bill Criswell.

6. But aside from describing MCSIs role in my January 7, 2010 declaration, I failed todescribe adequately Mr. Criswells routine and necessary exposure to the most sensitive, internal

communications among the core group of individuals engaged in the formulation of campaign

strategy and messages for ProtectMarriage.com, as is readily apparent from the examples set forth

in Exhibit A.


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7. I therefore believe that Mr. Criswell (but not all employees of MCSI) should beincluded within the core group of ProtectMarriage.com, notwithstanding the fact that the Court

has previously determined that MCSI is not within the core group.

8. I am aware that a number of sensitive documents regarding the internal formulation ofcampaign strategy and messaging have already been produced to the Plaintiffs on an attorneys eyes

only basis pursuant to the January 8, 2010 order (Doc # 372) and that those documents contain

communications among the core group plus one or more of the additional individuals described in

paragraph # 3 above. These documents have been produced with a Highly Confidential

designation. I believe they should not have been required to be produced because these four

individuals should have properly been included within the core group of the ProtectMarriage.com

campaign.

/ /

/ /

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3:09-cv-02292 #474

Documents

Transcript of 3:09-cv-02292 #474